The Queen v Patterson

[2008] NZCA 12

IN THE COURT OF APPEAL OF NEW ZEALAND

CA581/07
[2008] NZCA 12

THE QUEEN

v

CARL ANDREW PATTERSON

Hearing:12 February 2008

Court:Glazebrook, John Hansen and Wild JJ

Counsel:S J Gill for Appellant

K Feltham and G B Gimblett for Crown

Judgment:20 February 2008 at 4pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by John Hansen J)

[1]       Following a trial in the Wellington District Court before Judge Barry and a jury, the appellant was convicted of robbery.  He appeals against his conviction on the grounds that a miscarriage of justice has occurred because a laptop was used in the jury room during the trial.

Background

[2]       The accused faced one count of robbery.  That offence occurred outside the Lower Hutt Countdown on 19 September 2006.  The trial was short, and the only significant issue was that of identity.  The Crown relied on the evidence given by the complainant; of an eye witness who identified the appellant from a photo montage; security camera footage placing the appellant at the scene some ten minutes prior to the robbery; and the fact that the next day, the complainant’s BP fuel card was found in the rear passenger footwell in the car the appellant was found in.  It is clear that the evidence of identity was strong. 

[3]       After the trial was completed the District Court received an email from a juror in the following terms:

To: Reception (MOJ)

Subject: District Court – a Jury Policy / procedural suggestion

Hi could you please pass this on to whoever deals with Policy / Procedural issues relating to Juries.  Recommendation : That use of all electronic devices in Jury rooms be subject to policy and procedures appropriate for their capability.  Background : I recently served on a District Court Jury, and as part of our deliberations, all cell phones were removed.  Interestingly, a visible laptop was not.  Analysis : Whatever policy or procedure that requires the removal of cell phones is obviously not focussed on the use of laptops as a comprehensive and capable communication device.  Laptop capability includes the ability to connect externally, surf the net, make phone calls, record voices and, with sufficient imagination undertake a further variety of communications that would be invisible to other Jurors.  At a personal level I found it fascinating that a laptop was in active use throughout the trial and no instruction was given relating to it.  Conclusion : Either current procedures are not clear enough, or, they do not cover the risks that the cell phone policy seeks to prevent

[4]       The District Court responded in the following terms:

Thanks for you email.

Can you please provide some more information so I can respond to your email.  such as:

Was the laptop being used, or just visible in the courtroom?
Who was using the laptop (eg, lawyer, judge, juror, court staff, unknown)
Was the laptop in the jury deliberation room?
Which court did you attend for jury service?

[5]       The juror then replied:

I specifically didn't tell you which Court was involved because this is not a complaint of a single process, or anything I had issue with – rather it is a suggestion relating to a general policy or procedural implementation that demonstrably wasn’t consistent across devices within at least one court case.  My experience of life and technology suggests that this will not be the only time or only case where this has happened.  To focus on a single case, I believed was to miss the point that such an omission is a structural one relating to generic policies, training and procedures that should cover all communication-capable electronic devices.  (I create security Policy in ICT systems for my own organisation.) However, to answer the questions relating to the specific case and facts surrounding it J_____ Yes it was regularly used within the Jury room throughout all Jury breaks but not in the courtroom ____ It was being used by a Juror ____Yes the laptop was in the Jury Deliberation room while the Jury was locked away for deliberations (at this time cell phones had been explicitly removed) ____ Wellington District Court, Courtroom 4, Monday 20 and Tuesday 21 August ____ No instructions (that I remember) were ever given about electronic devices other than cell phones even though the laptop was open and in plain view to all Jurors and the Court Attendant (on the Jury table).  _____ I did not have a view of the screen, but at least two other jurors did – I saw and heard nothing to indicate it was being used for communication My brain did not catch up with the discontinuity on policy implementation during the trial as our deliberations were short and clear.  However, overnight I synthesised the potential risks, and made the recommendation I did in the interests of future procedural consistency.

[information identifying the emailing juror has been removed]

[6]       Quite properly, the Judge drew the contents of the emails to the attention of counsel.  That led to this appeal. 

Submissions

[7]       On behalf of the appellant it is submitted that the use of a laptop in the jury room during deliberations amounted to a material irregularity.  It was submitted that this struck at the heart of the integrity of the criminal justice system; the use of the laptop during deliberations was an irregularity which the Court should not disregard; and the juror had, in effect, set himself apart from the rest of the jurors during the deliberations.  This final submission was effectively one that the juror was not concentrating on matters of relevance during the deliberation.

Discussion

[8]       In this case the Judge clearly warned the jury against making use of the internet to investigate any matters themselves.  He also properly arranged to have cellphones collected before they commenced their deliberations.

[9]       What is apparent from the email set out above is that during the course of the trial a juror made use of his/her laptop during jury breaks.  We see nothing wrong with this.  It is no different from jurors making use of cellphones during the jury breaks or going back to their office to use a computer.  There is nothing to suggest that this use related to any enquiries relating to matters in issue at the trial.

[10]     However, Mr Gill has incorrectly recorded in his submissions that the laptop “was used in the deliberation room while the jury were locked away for deliberations (at this time cellphones had been explicitly removed)”.  What is clear is that the laptop was regularly used in the jury room throughout jury breaks, but not in the courtroom.  The email then goes on to say that the laptop was in the jury deliberation room while the jury was locked away, but it does not say that it was being used during that time.  It is also apparent that the laptop was on the jury table and was in plain view of all jurors and the Court attendant.  The juror goes on to say that he saw and heard nothing to indicate it was used for communications.

[11]     In R v Bates [1985] 1 NZLR 326 at 328 this Court stated the approach to be adopted in considering appeals based on juror misconduct:

We are of opinion that as a threshold requirement there must be a suspicion on reasonable grounds, by which we mean the existence of suspicion on an objective view that the misconduct may have influenced the verdict.  As in any issue of this kind the question is really whether there is a perceived risk of injustice, testing the matter objectively. 

[12]     In R v Walker [2002] 3 NZLR 468 this Court was concerned with an allegation of an unauthorised juror communication during deliberations in breach of s 370. In that case, a jury escort was seen in lengthy communication with two members of the jury. There was a second challenge on the basis the jury was outside on an area to which the public had access. This Court held, at 475:

Without tangible evidence of actual interaction with those likely to have influenced jurors or the jury in their deliberations on issues in the case, speculation cannot, in our view, be a sufficient basis for this Court to infer that improper contact may have taken place.

[13]     The difficulty confronting Mr Gill’s submissions is that it is speculative.  While there is evidence the laptop was in the jury room during deliberations, the email does not establish it was used during the deliberations.  Speculation it may have been used for an improper purpose is not enough to constitute an irregularity vitiating the verdict.

[14]     It is proper that a laptop may be used in the jury room throughout jury breaks, provided it was not used for internet searches on matters relevant to the trial.  The Judge gave a clear direction not to engage in this.  There is simply no evidence to suggest the laptop was used for improper research, and it was in clear view of all jurors who had been so directed.  They do not appear to have raised any concerns.  In this case there was a straightforward issue of identity which by its nature was unlikely to inspire a juror to conduct internet research.  There is also nothing in the email to suggest that any juror did not properly take part in the deliberations.

[15]     There is no evidence of any communication, nor any basis to infer improper internet research took place.

[16]     It is also apparent that the juror did not have concerns regarding this particular trial, but was motivated by a policy concern.  It is evident that the juror later had concerns about “potential risks”, but none during the deliberations which were “short and clear”.  When one adds to this that the juror stressed that he saw and heard nothing to indicate the laptop was being used for communication at any stage, objectively, there is no misconduct.

[17]     However, this case again highlights the difficulties with modern electronic methods of communication.  It would be wise for Judges to extend the warning relating to cellphones to laptops or any other device capable of communication.  We would add that in the circumstances that arose here, any communication with a juror should be by, or at the direction of, a Judge.  It is not something to be undertaken by Court staff on their own initiative.

Solicitors:
Gill & McAsey, Lower Hutt
Crown Law Office, Wellington